Wednesday, April 23, 2003

Fight about Rick Santorum here, if you like.

From Deal Hudson:

The interview he gave AP was in reference to a case coming up before the Supreme Court regarding the constitutionality of Texas' sodomy laws. The plaintiff in the case is arguing that the state has no right to interfere in one's sexual life (in the form of anti-sodomy laws) on the grounds that it violates our constitutional right to privacy.

The question is, how far does our right to privacy extend? Legal scholars have pointed out that, if the sodomy laws are overturned on the basis of our right to privacy, then other sexual acts that are currently illegal -- like incest, bigamy, and adultery -- will have to be made legal on the same grounds. Santorum's point is not a new one, nor is it

discriminatory. Really, it's just being consistent.

Reading the full transcript of the AP interview makes it even clearer that Santorum isn't "gay-bashing," but merely questioning the constitutionality of the argument for sodomy based on the right to privacy, and then extending that argument to its logical conclusion. Rather than having the Supreme Court come in, Santorum said that the people should be allowed to vote within their state as to whether they want sodomy laws, or any other kind of laws that restrict these activities.

But let's examine Santorum's quote in the best possible light, shall we? An optimistic interpretation would be that he is making a constitutional point about judicial restraint. That's fair enough. It's a perfectly debatable proposition whether there is a right to privacy in the Constitution, and it doesn't involve anyone's views of homosexuals, abortion or any other matter. But Santorum must also know that such a right to privacy is now settled constitutional doctrine: It underpins the right to abortion and even the right to practice contraception. If he wants to abolish it, he must surely hold out the possibility of the government once again policing some of the most intimate sexual and reproductive matters imaginable, regulated by nothing but majority opinion. Santorum's position is therefore that there should be no constitutional restraint on the power of government to regulate sexual morality -- even within your own bedroom. The only restraint -- especially against any sexual minorities -- would be mandated by majority decisions.

This seems to me a misreading. First, I don’t see where Santorum came out for the active, or even not-so-active, enforcement of anti-sodomy laws. Second, Santorum is not saying that governments should show no restraint in policing sexual morality. He is denying the existence of two particular restraints: a constitutional right to sexual freedom and a valid moral principle that prohibits the governmental policing of consensual sexual behavior. There may be all kinds of other reasons, both prudential and principled, for state governments to show restraint.